Mar. 12, 2014

Bridget Anne Kelly listens during a hearing in Mercer County court over whether she should turn over documents pertaining to the George Washington Bridge lane closures subpoenaed by a joint investigative committee of the Legislature. Also seated, from left, is Kevin Marino, attorney for William Stepien, and Michael Critchley, Kelly's attorney. / FROM POOL VIDEO

Written by

Michael Symons

@MichaelSymons_

At issue

Superior Court Judge Mary Jacobson was hearing arguments over whether Bridget Anne Kelly and William Stepien should be compelled to comply with subpoenas issued by the Legislature’s special investigative committee looking into the George Washington Bridge access lane closures in September. Kelly’s and Stepien’s attorneys argued that the subpoenas violated their rights against self incrimination and unreasonable search. The investigative panel contended the subpoenas do not violate their rights. The investigative panel brought the case before Jacobson after Kelly and Stepien refused to comply with the subpoenas. Key quotes

Reid Schar, attorney for the investigative committee on whether additional relevant documents exist: “I’m not guessing, judge. I know it because I’ve seen them.”Michael Critchley, attorney for Kelly, on how the Fifth Amendment provides his client with reason to not comply with the subpoena: “The Fifth Amendment is liberally interpreted and broadly applied,” he said.When is the ruling?

Jacobson said she will rule shortly, but would not give a date. She did, however, order the attorneys to supply by March 17 supplemental briefs on the question of the authority of the panel to hold people in contempt. Lawmakers expect a ruling in late March or early April.

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TRENTON — While it’s not yet known if key aides formerly in Gov. Chris Christie’s inner circle will successfully fend off the Legislature’s effort to subpoena their documents, one thing is clear about the investigation of the George Washington Bridge lane closures: This will take a long, long time to unravel.

Tuesday’s hearing on whether former Deputy Chief of Staff Bridget Anne Kelly and former Christie campaign manager William Stepien must comply with a legislative subpoena lasted three hours. A decision probably won’t be rendered for weeks, then it certainly will be appealed. Kelly’s lawyer won’t even concede she sent the “time for some traffic problems in Fort Lee” email that triggered the closures.

“This is going to take a lot longer than we thought,” said Assemblyman John Wisniewski, co-chairman of the special legislative committee investigating the lane closures.

“We are making meaningful progress,” said Wisniewski, who said thousands of pages of documents have been received in response to other subpoenas. “We could make a lot more progress if we had this material, but nobody should think that we’re not making any progress.”

Tuesday’s hearing focused on whether Kelly and Stepien should be required to provide the Legislature with emails, text messages and other documents from bridge-related communications with 32 people.

Their lawyers say their clients are innocent but are being investigated by federal prosecutors and therefore would be placing themselves at greater risk. The Legislature’s lawyer rejects their claim that only specific communications whose existence already is known can be subpoenaed, saying such a rule would essentially shut down investigations by grand juries, administrative agencies and other government entities.

State Superior Court Judge Mary Jacobson, the Mercer vicinage assignment judge, asked tough questions of both sides and didn’t indicate if she would rule for one side or the other or seek to uphold only parts of the subpoenas. At one point, she indicated that a case could be made that Kelly, because she was a state employee at the time of the actions in question, may be more liable to have to turn over documents.

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“They were serious legal issue arguments by serious lawyers in a legal area which is somewhat murky,” said Joseph Hayden Jr., a founder of the Association of Criminal Defense Lawyers of New Jersey, a legal observer who is not involved in the case.

“For that reason, the judge will need time to reflect on the legal precedents, the demands made and then make a decision based on the specific requests in the subpoena. These are serious legal issues, and everybody’s taking their time about doing it.”

“This litigation will be a marathon, not a sprint,” Hayden said.

Reid Schar, a Chicago-based former federal prosecutor who is lead attorney for the Legislature’s investigative committee, told Jacobson the subpoenas to Kelly and Stepien were “very focused.”

“This is not, has not been and the subpoenas are not fishing expeditions of any sort. Quite the opposite,” Schar said.

Schar conceded that none of the emails currently in the committee’s possession explicitly say that another email on the topic exists. He said the scope of the emails shows there was routine discussion and that whenever the lane closures came up, the conversation was moved to private email accounts.

Schar said that since the subpoenas were served, the committee has received “a considerable number of communications” that involved Kelly and Stepien related to the lane closures. They include emails that were forwarded to them and in some cases their responses, he said.

Stepien’s lawyer, Kevin Marino, dismissed some of Schar’s arguments as “astonishing,” while Kelly’s lawyer, Michael Critchley, said they took “a lot of chutzpah.” Both in court and later to reporters, they said the Fifth Amendment protection against self-incrimination is supposed to be broadly applied and has been since the 1790s.

“There is no more fundamental right than the right not to be made a witness against yourself, and that’s the right that we’re here to enforce today,” Marino said.

Kelly was fired by Christie in January, when an email suggesting she green-lighted the lane-closure operation was released publicly. Stepien, who held Kelly’s state job before leaving to work for the campaign, was let go by Christie as a consultant to the Republican Governors Association and was blocked from an expected appointment as Republican Party state chairman. He exchanged emails discussing the impact of the closures after they occurred.

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Kelly attended the court hearing but didn’t speak in court or to reporters outside the courthouse. Stepien did not attend. Their presence was not required.

Among the other unresolved issues is whether the special investigative committee can hold a person in contempt for not complying with a subpoena, as the Assembly Transportation Committee did in January when ex-Port Authority of New York and New Jersey executive David Wildstein refused to testify.

Schar said the special committee may lack that authority because of the way it was created. Even if it cannot, the full Legislature could vote to hold a person in contempt. The Legislature’s lawyers have until Monday to submit a brief to Jacobson explaining their position on that matter.

Another unresolved issue, and a potentially more important one, is whether the Legislature’s investigative committee could grant immunity. Schar said it can for testimony but perhaps not for producing documents. Critchley said it could but that it would interfere with the federal investigation begun by U.S. Attorney Paul Fishman’s office.

“It shouldn’t be that the committee has to grant immunity in order to get documents that are otherwise rightfully within their power to request,” Schar said.